Point of Order - A Discussion of Congressional Legal Issues

March 18, 2025

God Save the United States and this Honorable Court

As reported by SCOTUSblog (among many others), Chief Justice Roberts today issued the statement that “[f]or more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

The statement was, of course, made against the background of repeated impeachment threats made against federal judges who have had the audacity to issue rulings unfavorable to the Trump administration. Trump allies such as Elon Musk have been calling for judicial impeachments on social media for several weeks. At least four impeachment resolutions have been introduced so far in this Congress: one against Judge Amir Hatem Mahdy Ali of the U.S. District Court for the District of Columbia; one against Judge John D. Bates, also of the U.S. District Court for the District of Columbia; and two (see here and here) against Paul Engelmayer of the U.S. District Court for the Southern District of New York. In addition, earlier this morning President Trump demanded the impeachment of the Chief Judge of the U.S. District Court for the District of Columbia, James Boasberg, on Truth Social, and one of his congressional lackeys promptly boasted on social media that he was introducing an impeachment resolution for Boasberg as well.

The fact that Roberts chose now to opine on this matter may strike some as rather ironic. During the first Trump impeachment, at which Roberts presided in accordance with article I, §3, cl. 6 of the Constitution, he basically sat like a potted plant while studiously avoiding making rulings or offering opinions on the legal issues in the case (admittedly the role which tradition and the inclination of the Senate tend to demand). He declined to participate at all in the second Trump impeachment, thereby providing implicit support for the theory that a former president was not subject to impeachment. When faced in Trump v. Anderson with the argument that Trump’s conduct in connection with January 6 disqualified him from serving again as president, he advanced an interpretation of section 3 of the 14^th amendment which came perilously close to making that provision a dead letter for the presidency. And finally, in Trump v. United States (a case I will be discussing further in upcoming posts), he endorsed a theory of presidential immunity which is wholly at odds with the Constitution and which, as a practical matter, allowed the former president to escape legal consequences for his allegedly criminal conduct in office.

Having failed repeatedly to exercise the authority which the Constitution bestows upon him, the chief justice here chooses to speak on a matter which is arguably none of his business. To be sure, the opinion he offers is completely reasonable. As we discussed long ago, there is a strong constitutional norm or convention against impeaching judges for their rulings, regardless of how wrongheaded they are thought to be. But it is Congress, not the Court, which has established this principle, and the Court has recognized that the subject of impeachment is a political question constitutionally committed to Congress alone. Thus, if Congress were to decide it wants to start impeaching judges for their rulings, there is little that the chief justice or the Court could do to stop it.

Of course, there is no chance that an impeachment of any of these judges would be successful. I doubt that there are enough votes in the House to adopt articles of impeachment, much less to convict in the Senate. Indeed, I suspect that the House Judiciary Committee would be loath even to hold hearings on these judicial impeachments because that would provide a public forum for discussing the underlying cases which prompted the offensive rulings. I imagine House Democrats would love the opportunity to call for testimony from the likes of Elon Musk and the Alleged Acting Administrator of DOGE.

It is therefore doubtful that Roberts thought his statement was either necessary or helpful to forestall impeachment proceedings. It is more likely he was trying to assure lower court judges that he and his fellow justices will not countenance an organized campaign of intimidation against them. Whether that assurance will turn out to be worth the paper it is written on remains to be seen. Recent history provides ample reason for skepticism.

February 27, 2025

In Memoriam: Elise Bean, Public Servant

Elise Bean was a singular figure in the world of congressional oversight. She spent her career on the Hill working for Senator Carl Levin (D-Mich), most notably as his chief counsel and staff director for the Permanent Subcommittee on Investigations (PSI). There she led the staff of one of Congress’s most storied investigative committees under the chairmanship of a senator known for his commitment to congressional oversight and institutional prerogatives. Many of the most important investigations she led at PSI are discussed in a book she wrote after leaving the Hill in 2014, Financial Exposure: Carl Levin’s Senate Investigations into Finance and Tax Abuse (2018).

Elise passed away on January 14 of this year at the much too young age of 68. I was stunned to learn of her death the next day when it was announced at a panel on congressional oversight that she was supposed to moderate. I had last spoken with Elise a couple months earlier, and at the time she was in complete remission from pancreatic cancer. But the cancer returned suddenly. The loss it caused will be felt deeply by the entire congressional oversight community and her many friends and colleagues.

Although we overlapped on the Hill, I did not really know Elise until we met in connection with the Legislative Branch Capacity Working Group (Make Congress Great Again!), which was launched in 2016. Elise was a tireless advocate for enhancing congressional capacity and, in particular, for strengthening and professionalizing Congress’s oversight capabilities. In her post-Hill career, she helped to establish the Levin Center for Oversight and Democracy, a nonprofit organization dedicated to the development of bipartisan oversight capacity both in Congress and state legislatures. One of her significant initiatives as the director of the Levin Center’s Washington, D.C. office was to put on “oversight boot camps” at which hundreds of congressional staffers have been taught the techniques of conducting investigations.

Elise was also incredibly generous with her time. Each semester I taught congressional oversight at the George Washington School of Political Management, Elise enthusiastically agreed to guest lecture one of my classes. And her enthusiasm was contagious—student evaluations consistently rated her lecture as one of the highlights of the course. Elise would illustrate the “Levin Oversight Principles” with examples from her days at PSI. She was particularly fond of recounting PSI’s investigation into abusive practices at credit card companies. The lead witness at the committee hearing was a man named Wannemacher (aka “the wedding guy”), who had incurred $3,200 in charges for his 2001 wedding, paid nearly twice ($6,300) that amount to the credit card company over the next six years, and still owed more ($4,400) than the original debt. The power of such stories to mold public opinion was demonstrated by the fact that the company forgave the debt right before the hearing in a desperate (and unsuccessful) effort to keep the wedding guy from testifying.

One of the Levin Oversight Principles was to be “relentlessly bipartisan,” something that Elise always stressed. This is not an idea that is much in fashion these days; undoubtedly many people on both sides of the political divide would scoff at it as naïve, weak and impractical. But while Elise’s support for bipartisanship might have been partially rooted in an optimistic view of human nature that many (myself included tbh) do not share, it was also pragmatic. A bipartisan investigation is going to be far more effective in getting information and a sympathetic hearing from the public, and lasting reforms are far more likely when there is bipartisan support. And while ruthless partisanship may seem attractive in the moment, it has a tendency to backfire. (How many Senate Democrats wish today they had listened to Senator Levin when he warned of the consequences of nuking the filibuster for nominations?)

A corollary principle was to first “focus on the facts” in any congressional investigation. Just as the facts don’t care about your feelings, they don’t care about your political party. If the ultimate purpose of congressional oversight is to effect policy change that will promote the public good, as Elise deeply believed, establishing a clear and comprehensive factual record (preferably one agreed to by both the majority and minority) is the first step in identifying needed reforms. Having a debate about the best policy response based on a shared understanding of the facts, she would argue, is the most constructive way to proceed. And if you believe that your ideas and policies are truly the best, why would you fear agreement on the facts?

But whether or not you agree with Elise’s approach to congressional oversight, no one could dispute her commitment to her craft, her amazing work ethic, and her infectious spirit that made everyone around her better. As Senator Blumenthal noted in a tribute delivered on the Senate floor: “She looked for the good in people, in our government, and created more good in the world. Those who knew her will cherish and strive to continue her legacy.”

February 23, 2025February 23, 2025

The Exciting (Well, To Me) Conclusion of the JOR Memo

When we last left the saga of the JOR memo, Roberts had reached the (imho erroneous) conclusion that while executive officers “are subject to subpoena to testify before the United States House of Representatives or a committee thereof in connection with hearings for legislative purposes, the question as to whether the public interest requires them to refuse to answer a question or refuse to produce records in their custody or control is for their determination as a public officer.”

He does not stop there, however. Instead, he turns to the question “whether by reason of the law creating the Federal Communications Commission and the quasi-legislative and quasi-judicial nature of its functions this agency is an executive agency and whether the officials thereof thus are answerable to the President of the United States or to the Congress.” Relying on Humphrey’s Executor v. United States, 295 U.S. 602 (1935), he found that the FCC “is a quasi-legislative and judicial body and is not part of the executive branch of the Government.” Therefore, he concluded, “it is further my opinion that a member or officer of the Federal Communications Commission is required to answer a subpoena by Congress and to testify or produce records of said agency subject to punishment for contempt if he refuses to do so.”

The logic of Roberts’s position seems to be this. Because executive agencies are “answerable” to the president alone, Congress may not exercise compulsory subpoena power with respect to them. However, because independent agencies are not “answerable” to the president, but only to Congress, Congress may subpoena them and punish their officers and employees if they fail to comply. While there is a certain internal consistency in this position, it founders on the deficiencies of the original premise, which we have already discussed and need not belabor here.

Perhaps more interesting is the question of why Roberts wrote this memo in the first place. It seems to be addressing a question that would be of interest to the FCC itself or someone at the FCC who had been subpoenaed by the House committee. But the memorandum is written strangely if he was concerned only with the legal obligations of the FCC and its officers. Roberts spends a good deal of the memo arguing that executive officers are exempt from congressional compulsion, yet that point is immaterial to his ultimate resolution of the issue. Moreover, however sincerely Roberts may have held his view, he must have known that this was hardly a settled issue and was one vigorously contested by Congress. If he were simply advising someone at the FCC of their legal obligations, he would have written something like “although there is a strong argument that executive officers cannot be punished for withholding information from Congress on the grounds of the public interest, this argument does not apply to the FCC because _______.” The fact that he was so emphatic in his conclusion regarding executive officers suggests that he may have been writing with the interests of others in mind.

Continue reading “The Exciting (Well, To Me) Conclusion of the JOR Memo”

February 13, 2025

Getting Some Answers About DOGE

So I have been planning to write posts on so many topics that I have gotten around to none of them. But a social media discussion today impels me to mention a House procedure which seems well suited, as a first step, to addressing some of the many questions which have arisen regarding the so-called Department of Government Efficiency (DOGE).

Whatever else it may be, DOGE is not in fact a government department. So what is it? As explained by this CRS report, it is in theory a renamed version of an entity originally established in the Executive Office of the President in 2014 by President Obama. It was previously named the U.S. Digital Service and was supposed to help improve agency digital services. (Whether it actually did this is not mentioned). It sounds like the U.S. Digital Service was not originally authorized or funded by Congress. Instead, the OMB director transferred funds to the U.S. Digital Service from the “Information Technology Oversight and Reform” appropriations account for the Executive Office of the President. However, it did receive funding in one of the gigantic COVID relief bills.

In reality, DOGE seems to be an entirely different entity than the U.S. Digital Service, though presumably it is funded through the same mechanism. But although there have been some executive orders laying out DOGE’s functions in skeleton form (including one since the CRS report was issued), many questions remain. These include the status of Elon Musk, who has been identified as a “special government employee” and who may or not be serving as the “USDS Administrator” who the executive orders identify as being in charge of DOGE. Regardless of whether Musk or someone else is formally in charge of DOGE, the question remains whether that position may be filled by someone who is not an officer of the United States and not appointed in accordance with the Appointments Clause.

In theory, as we discussed long ago, the White House is allowed to employ “advisers” who need not be officers of the United States because they exercise no “independent authority or sovereign power,” as Obama’s White House Counsel explained in 2009. I expressed some skepticism of this theory when it was raised to justify Obama’s various “czars,” and I see no reason to be less skeptical of its application to the head of DOGE, which seems to be even more blatantly operational and not simply advisory. In any event, there is no way to make an informed judgment about the constitutionality of DOGE’s operation without some more information on what it is doing and what powers, if any, it has.

There are many other questions about DOGE. Who is hiring the DOGE staff? What screening mechanisms are employed with regard to conflicts of interest? What information and systems are DOGE staff allowed to access at departments and agencies? What supervision are administration officials exercising (or permitted to exercise) with regard to the activities of DOGE staff within their departments and agencies? Does the White House understand DOGE to be covered by laws about transparency, privacy, and ethics and, if so, which ones and how?

One way to get such answers would be through the normal committee oversight process. However, at the moment there does not seem to be much interest on the part of Republican committee chairs in either the Senate or House. An alternative method of getting information, which can be employed by any member of the House of either party, is to offer what is known as a resolution of inquiry. As explained by CRS in a 2017 report:

A resolution of inquiry is a simple resolution making a direct request or demand of the President or the head of an executive department to furnish the House with specific factual information in the Administration’s possession. Under the rules and precedents of the House of Representatives, such resolutions, if properly drafted, are given a privileged parliamentary status. This means that, under certain circumstances, a resolution of inquiry can be brought to the House floor for consideration even if the committee to which it was referred has not reported it and the majority party leadership has not scheduled it for action.

Of course, introducing a resolution of inquiry does not guarantee it will be adopted by the House. But it should get you a floor vote (after 14 days in committee). And I would think that voting against a resolution of inquiry that simply tries to get some information about what the heck DOGE is doing may not be that easy for some Republican members of the House.

Anyway, its an idea.

January 15, 2025

The JOR Memo, the Myers Case, and the Theory of Executive Privilege

To assess the executive privilege argument of the JOR memo, we should begin by drawing three distinctions which are either blurred or ignored in that memo (and the subsequent Wolkinson memo). These are (1) constitutional immunity versus (common law or constitutional) privilege; (2) the protections available to the chief executive versus those available to lower level officials; and (3) subpoenas to appear and provide testimony versus subpoenas to produce documents.

These distinctions are suggested by a passage from a prominent legal treatise that Roberts quotes:

Subpoena to Executive. It is well settled that public officials are not bound to disclose state secrets or to submit public papers to judicial scrutiny. Partly on this ground, and partly because of the immunity of the executive from judicial control on account of the tripartite separation of powers, it seems now to be undisputed that courts cannot compel the attendance of the chief executive as a witness.

JOR memo at 4-5 (quoting 12 Corpus Juris 896 (W. Mack, ed. 1917)) (emphasis added).

This passage distinguishes between the right of public officials to protect state secrets, which is a common law privilege, and the constitutionally based theory of “immunity of the executive from judicial control on account of the tripartite separation of powers.” There were several governmental privileges widely understood to be available under common law, but these protections were limited in scope and generally qualified rather than absolute even when they applied. See Jonathan David Shaub, Common Law Executive Privilege(s) (forthcoming 2025).

The passage also addresses judicial subpoenas to the “chief executive” (i.e., a governor or president) and opines (with some exaggeration) that it is “undisputed” such subpoenas cannot be enforced. The rationale given is based partly on common law privileges and partly on state and federal separation of powers principles that prohibit compulsion of the chief executive. But the fact that the chief executive is (or may be) beyond the compulsory power of the court does not imply the same for lower-level officers.

Finally, the passage baldly asserts that public officials are not required to submit “public papers to judicial scrutiny.” Again this seems to be a significant exaggeration, but there is language in some of the cases and secondary sources cited by the treatise which suggests a broad discretion on the part of chief executives and (sometimes) other high-level public officials to withhold certain types of public papers in judicial proceedings.

The authorities speaking to these questions are a mix of English and state cases, along with some 19^th century evidentiary treatises. No federal authority had addressed the issue as of the time of the JOR memo. Moreover, none of the authorities spoke to congressional proceedings at all. According to Roberts, however, Myers somehow supports the proposition that while executive officers “are subject to subpoena to testify before the United States House of Representatives or a committee thereof in connection with hearings for legislative purposes, the question as to whether the public interest requires them to refuse to answer a question or refuse to produce records in their custody or control is for their determination as a public officer.” JOR memo at 4.

As noted in my last post, why Roberts thinks Myers supports this result is somewhat obscure. There seem to be two possible arguments, which are discussed below. Continue reading “The JOR Memo, the Myers Case, and the Theory of Executive Privilege”

January 6, 2025

The JOR Memo and William Howard Taft

Having claimed that the power of Congress to compel the production of information has been established by Supreme Court precedent only as to private persons, Roberts turns to “the right of the United States House of Representatives or a committee thereof to compel the testimony of or the production of records by officers of the executive branch of the Government.” JOR Memo at 3. Key to the resolution of this question, according to Roberts, is Chief Justice Taft’s opinion for the Court in Myers v. United States, 272 U.S. 52 (1926), which held that the power to remove executive officers is vested in the president alone and may not constitutionally be restricted by Congress.

Taft’s opinion, which was issued one year before the Court’s unanimous decision in McGrain, does not involve or discuss congressional investigations or the obligation of executive officers to respond to subpoenas or demands for information. Exactly why Roberts thinks the opinion is relevant at all is somewhat obscure (I will take that up in my next post), but nothing in its language or reasoning has any direct bearing on the issue at hand.

A more useful guide to Taft’s thinking on the executive’s obligation to produce information to the other branches is a book he wrote after his presidency but before his appointment to the Court. See William Howard Taft, Our Chief Magistrate and his Powers (1916). Roberts does not mention this book, but interestingly Wolkinson cites it at several points in his 1948 memorandum.

In one passage Wolkinson quotes prominently, Taft says:

The President is required by the Constitution from time to time to give to Congress information on the state of the Union, and to recommend for its consideration such measures as he shall judge necessary and expedient, but this does not enable Congress or either House of Congress to elicit from him confidential information which he has acquired for the purpose of enabling him to discharge his constitutional duties, if he does not deem the disclosure of such information prudent or in the public interest.

Our Chief Magistrate 129.

This should not be read as a claim that the president may forbid his subordinates from complying with compulsory process whenever he deems it to be in the public interest. Instead Taft is addressing the president’s personal obligation to provide information demanded by Congress. This is confirmed by the ensuing paragraphs, which discuss several occasions on which sitting presidents successfully refused to comply with demands for information from Congress or the courts. See Our Chief Magistrate 129-30. These incidents, which also appear in the JOR and/or Wolkinson memos, include Washington’s refusal to provide the House with documents relating to the Jay Treaty (on the ground that the House has no constitutional role in the treaty-making process), Grant’s rejection of a demand from the House to identify executive acts he performed away from the seat of government, and Jefferson’s objection to appearing in court or producing documents in response to a subpoena duces tecum issued to him by Chief Justice Marshall in the Burr treason trial. None of these incidents involved a president directing his subordinates to withhold documents or refuse to testify in response to the compulsory process of Congress or the courts.

Continue reading “The JOR Memo and William Howard Taft”

January 3, 2025January 3, 2025

The JOR Memo’s Analysis of the Congressional Investigatory Power

Continuing where I left off, the JOR memo (as I will call it) begins by framing the question of the congressional right to obtain information from the executive as follows:

In considering this matter it must be remembered that our form of Government is tripartite, i.e., executive, legislative and judiciary. Each branch in so far as the exercise of its constitutional functions are concerned is independent of the other.

To permit one branch of the Government by affirmative or negative action to defeat the right of the other to perform its constitutional functions would be to destroy the very form and substance of our democratic government. Further, to say that one branch in the exercise of its constitutional functions can force the other to reach any particular decision or to perform any specific act, which under the Constitution is in the sole discretion of the other, would likewise shake the foundation of our democracy.

(emphasis added).

In addition to being rather dramatic, this argument is more than a little circular. A congressional demand for information from the executive only “defeat[s] the right [of the executive] to perform its constitutional functions” if one assumes that the constitutional functions of the executive include deciding what information should be withheld from Congress. This, however, is precisely the question at issue. Likewise, it is unexceptionable to contend that Congress cannot force the president to make a decision or perform a specific act which the Constitution leaves to the latter’s “sole discretion.” But this assertion does nothing to advance the proposition, which certainly cannot be found in the Constitution’s text, that the president in fact has the “sole discretion” to decide what information should be provided to Congress.

To illustrate this point, one need only look to a hearing held by the House select committee on the FCC a few weeks prior. At a July 9, 1943 hearing, the committee chair, the conservative southern Democrat Eugene B. Cox, decried the fact that President Roosevelt had directed the War and Navy Departments not to produce documents requested by the committee on the grounds to do so would be contrary to the public interest. FCC Hearing at 73-74. In Cox’s view, this action amounted to executive interference with the proper functioning of the legislative branch. In language which perhaps Roberts parroted in his own memorandum, Cox then stated:

It scarcely need be said that the whole concept of our American system of government under our Constitution rests upon the fundamental principle that each of the three coordinate independent branches of the Government, although checked and balanced each by the other, cannot be subject to domination by the others without the whole structure crumbling.

Id.

Thus, while Cox and Roberts agree that the Constitution establishes three separate and independent branches of government (indeed, it scarcely need be said), this tells us very little about whether Congress has the right to compel the executive branch to provide information or who makes the ultimate determination whether the public interest requires withholding of information in response to any particular congressional request for information.

Continue reading “The JOR Memo’s Analysis of the Congressional Investigatory Power”

January 2, 2025

Another Early Executive Privilege Memo

Referring your attention to a post I wrote a few weeks ago regarding the 1948 Wolkinson memo that I found at the Truman Library, there was one other document located in the same file. Unlike the Wolkinson memo, this document, to the best of my knowledge, has not previously been made publicly available. Predating the Wolkinson memo by five years, its argument is similar (with some differences that I will discuss) and thus may be the earliest iteration of what would become known as the doctrine of executive privilege.

The document in question is a 10-page memorandum entitled “Authority of the Congress to Compel Testimony or the Production of Records.” It does not say to whom it is addressed, but the author is identified as James O’Connor Roberts, and it is dated August 10, 1943.

The first sentence of the memorandum states that the memo will address “the right of the United States House of Representatives to require testimony of, or the production of records by, officers of the Federal Communications Commission.” This question undoubtedly was asked in the context of the then-ongoing proceedings of a House select committee which was holding a series of contentious hearings in the summer of 1943. See generally Study and Investigation of the Federal Communications Commission, Hearings Before the House Select Comm. to Investigate the Federal Communications Commission, 78^th Cong. (1943) (“FCC Hearing”).

As noted above, it is not clear for whom the memo was prepared, although it appears to be written from the perspective of someone interested in grounds for resisting the informational demands of the select committee. Since it specifically addresses the obligations of officers of the FCC, it may have been requested by FCC commissioners and/or attorneys who were facing demands for testimony and documents from the select committee. See, eg., FCC Hearing at 42-67 (testimony of FCC Chairman Fly and FCC General Counsel Denny). On the other hand, there were others in the Roosevelt administration, up to and including the president himself, who were concerned about the select committee’s investigation and did not wish to cooperate with its demands for information. See id. at 67-74.

Nothing that I have learned about the memo’s author so far sheds much light on his purpose for preparing the memo. James O’Connor Roberts was a fairly prominent and well-connected Washington lawyer who was active in civic and philanthropic causes. At one time he had worked for the federal government but he went into private practice in the 1930s. He might well have been asked to prepare the memo by someone at the FCC, the Department of Justice or the White House, but at this point it is hard to say.

How the memo got into President Truman’s White House files is also something of a mystery. Truman, of course, was not president or even in the administration in 1943. Roberts participated in meetings with Truman at the White House on several occasions in 1948 and 1949, mostly in connection with charitable or civic events such as the annual Christmas lunch of the Chatterbox Club (don’t ask me). Truman also appointed Roberts to serve on the Subversive Activities Control Board in 1952. Whether any of this relates to how the memo found its way into the Truman White House is anybody’s guess.

Anyone who has more information about this memo or its author is welcome to contact me. In the meantime, I plan to do a series of posts unpacking and analyzing the arguments made in this short but interesting document.

December 2, 2024

Truman, Wolkinson, and the Invention of Executive Privilege

Apropos of nothing, I was reading Judge MacKinnon’s dissent in Nixon v. Sirica, 487 F.2d 700, 729 (D.C. Cir. 1973) (en banc) and came across a passage I had not paid attention to before. In arguing that historical practice “firmly establish[es] a custom and usage that a President need not produce information which he considers would be contrary to the public interest,” id. at 737, MacKinnon cites the following episode from the Truman administration:

In 1948, following an abortive attempt by a Republican-controlled Congress to obtain certain information and papers from the executive department, a bill was prepared which, if enacted, would have required every President to produce confidential information even though he considered that compliance would be contrary to the public interest. President Truman thought that such a law would be unconstitutional and in preparation for the 1948 presidential election campaign he had a lengthy memorandum prepared (hereinafter referred to as the “Truman Memorandum”). The Truman Memorandum recites all the principal instances, beginning in 1796, where Presidents have refused to furnish information or papers to Congress.

Id. at 731.

MacKinnon cites a 1948 New York Times article which discusses this memorandum. The article, written in the midst of the Truman-Dewey presidential campaign, explains that “President Truman’s legal advisers have prepared for his use in the campaign a book-length memorandum designed to prove his right to refuse to deliver any papers or information held by him or his Cabinet officers to the Congress or its committees.” The article notes that the memorandum relates most immediately to controversies regarding Truman’s refusal to provide information regarding federal employee “disloyalty files” to congressional committees, but that it also may be seen in the light of “much larger issues”

The article does not identify the “legal advisers” who drafted the memorandum. It does, however, cite “[o]ne of the authors of the memorandum [who] compared the relationship of the President and Congress under the Constitution to that of husband and wife, in a marriage where laws cannot compel one to acquiesce to the other.” In this somewhat odd analogy the “ultimate disposition of a quarrel between them” could only be by a political “divorce” in the form of impeachment proceedings against the president.

After conferring with Professors Josh Chafetz and Jonathan Shaub, I concluded that the memorandum in question was likely an early version of the famous memorandum prepared by Herman Wolkinson, the obscure and mysterious Justice Department official whose work would later become the basis for the Eisenhower administration’s creation of the doctrine of executive privilege. Wolkinson first published his study in 1949 as a three-part series of articles in the Federal Bar Journal, but to my knowledge this 1948 version had not been made publicly available.

Judge MacKinnon clearly had a copy (perhaps from his days at the Eisenhower Department of Justice), and he indicated that the original was kept at the Truman Library. So I reached out to the very helpful staff at the Truman Library and they found for me the 102 page memorandum described in New York Times article.

As suspected, this is a version of the Wolkinson memorandum. In fact, as far as I can tell, it is identical, except for a few changes in formatting, spacing, punctuation, etc., to the version that then-Deputy Attorney General William Rogers submitted to a Senate Judiciary subcommittee on April 10, 1957. See Freedom of Information and Secrecy in Government, Hearing before the Senate Subcomm. on Constitutional Rights of the Comm. on the Judiciary, 85^th Cong., 2d sess. 62 (1958).

Rogers described the memorandum as “a study prepared in this Department” and that is how I always understood the Wolkinson memorandum. I assumed that Wolkinson had been charged, as a DOJ employee, with researching the issue of executive privilege to assist the Department in responding to congressional demands for information during the Truman administration and that his work was re-discovered when President Eisenhower asked his attorney general for legal authority to justify resisting Senator McCarthy’s demands for information from the Army and other parts of the executive branch.

If in fact the memorandum was prepared for use in the Truman campaign of 1948, that raises some questions. How did Wolkinson become a “legal adviser” to the Truman campaign? Was he the sole author or were there others? Was he the source of the odd marriage analogy provided to the Times reporter? Why would it be appropriate for a career Justice Department lawyer to be providing legal assistance to the president’s campaign team? (I guess if the president’s “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials,” as asserted by the Supreme Court in Trump v. United States, covers the attempted use of the Justice Department to overturn an election the president lost, he can also use it to try to win the election in the first place.)

Anyway, this all may be of little interest to anyone who isn’t an executive privilege scholar (and perhaps not even to those who are). But given the importance of the Wolkinson memo and how little seems to be known about it, I thought it worth flagging.